Grote

I concur in the judgment of reversal upon the second point discussed in the leading opinion relative to the homestead right. I think, however, that the case is within the old and well-established rule that ejectment will not lie for the disturbance of a right of way or other easement. Two decisions of this court are mainly relied on: Visalia v. Jacob, 65 Cal. 434 ; Southern Pac. Co. v. Burr, 86 Cal. 285 . In the Visalia case, the only question before the court was whether a private citizen can acquire title by adverse possession to land which had been dedicated to public use as a street; counsel there made no question as to the proper remedy; and what the court said about ejectment was incidental and unnecessary, and was not the result of the consideration of a point raised and argued by counsel. In Southern Pac. Co. v. Burr, supra, the decision evidently went upon the theory that the estate which the railroad company had *63 in the strip of land two hundred feet wide granted hy Congress was something more than a mere right of way. The point is not discussed or referred to in the opinion in either Eureka v. Armstrong, 83 Cal. 623 , Eureka v. Fay, 107 Cal. 166 , or Napa v. Howland,…

This action is brought by the city to recover the possession of a small tract of land twelve and one-half by thirty-five feet, being a .strip, of the aforesaid dimensions, forming the rear end of the lot of defendant. It is claimed by the city and found as a fact by the trial court that such strip had been dedicated by the owner to the public as a highway or street. Two material questions are raised by this appeal: 1. Can the city and county of San Francisco maintain ejectment for the recovery of the possession of a public street, without showing ownership of the land in fee? 2. Does the evidence show a dedication of the strip of land in dispute to the use of the public for street purposes?

While there may be a difference of opinion existing in the courts of other states upon the question, we think the doctrine should be held settled in this state that ejectment can be maintained for the recovery of the possession of a street dedicated’ to the public use by the owner of the fee. In Visalia v. Jacob, 65 Cal. 434 , 52 Am. Rep. 303 , this court declared: “It is true an action of ejectment may be maintained by a municipal corporation for the recovery of the possession of a street…